# Amicus Brief — Mills v. Rogers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 457 U.S. 291

## Text

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No. 80-1417

ee THE SEP 28 1961
SUPREME COURT OF THE UNITED |STATES |...

October Term, 1980 a

MARK MILLS, et al.,
Petitioners
v.
RUBIE ROGERS, et al.,
Respondents

On Writ of Certiorari to the United States
Court of Appeals for the First Circuit

BRIEF FOR
PATIENTS' RIGHTS ADVOCACY SERVICES, INC.
AS AMICUS CURIAE

LOUIS M. AUCOIN, III*
Patients’ Rights’
Advocacy Services, Inc.
2525 24th Street

San Francisco, CA 94110
(415) 282-1777

* Counsel of Record

QUESTIONS PRESENTED

1. Can the State of Massachusetts

forcibly administer dangerous anti-psychotic

medications to involuntarily committed men-

tal patients against their will without
violating their Constitutional rights?

2. Is it a Constitutional exercise
of state power for the State of Massachu-
setts to forcibly administer dangerous
anti-psychotic drugs on involuntarily
committed mental patients against their
will in order to prevent their mental
deterioration?

3. Are courts Constitutionally re-
quired to safeguard the fundamental rights
of involuntarily committed mental patients
to refuse anti-psychotic drugs by exercis-
ing a "substituted judgment" on behalf of
patients who have been found incapable of

making the decision?

ii.

TABLE OF CONTENTS

Page No.
QUESTIONS PRESENTED ....... ibs
TABLE OF CONTENTS ........ £4.
TABLE OF AUTHORITIES ...... vi.
INTEREST OF AMICUS CURAIE .... 1.
SUMMARY OF ARGUMENT ....... 3.

ARGUMENT :

I. THE STATE OF MASSACHUSETTS
IS CONSTITUTIONALLY BARRED
IN NON-EMERGENCY SITUATIONS
FROM ADMINISTERING DANGEROUS
PSYCHOTROPIC MEDICATIONS TO
INVOLUNTARILY COMMITTED
aera? PATIENTS AGAINST THEIR ‘

A. Forcible Medication Of
Involuntarily Committed
Mental Patients Violates
Fundamental Rights Guar-
anteed To Them By The
Constitution Of e United
States . . >. . >. >. . . >. . >.

1. Forcible medication of invol-
untarily committed mental
me ca violates their
undamental right to privacy
in decisions concerning their
GU POGEOO 6. a okie ce 0c 0 0 Oe

2. Forcible medication of invol-
untarily committed mental
patients violates their fun-
damental right to bodily pri-
vacy and personal security
guaranteed by the Fourteenth

Il.

iii.

Amendment to the United
States Constitution ....

Forcible medication of
involuntarily committed
mental patients violates
their First Amendment

right to the free generation
Ge eee Gb te 6 0 0 ce ete

The State of Massachusetts
Has No Interest In Forcibly
Administering Dangerous
Anti-Psychotic Medications
To Involuntarily Committed
Mental Patients In Non-
Emergency Situations ...

The State of Massachusetts
Cannot Constitutionally
Deprive Mental Patients Of
The Right To Refuse Medica-
tion By Merely Committing
Them Against Their Will...

Commitment hearings in
Massachusetts do not comport
with what due process requires
before the right to refuse
medication can be denied. .

The State of Massachusetts
may not deprive involuntar-
ily committed mental patients
of their right to refuse medi-
cation by presuming their
imcompetence .......

FORCIBLE ADMINISTRATION OF
DANGEROUS PSYCHOTROPIC DRUGS
TO PREVENT FURTHER MENTAL
DETERIORATION IS AN UNCONSTI-
TUTIONAL EXERCISE OF STATE
POWER . . . . . . . . . 7 7

18.

21.

26.

26.

30.

33.

iv.

Page No.

A. Legitimate Exercise Of The
State's Emergency Police
Powers Is Not Triggered By
The Concept Of Psychiatric
oo ee ee ae 33.

B. A Judicial Determination Of
Incapacity To Act Is Required
Before The State Acts As
fo DD a | SS 34.

1. The State has no authority.
to act as parens patriae
unless the indiviluals
mental deterioration also

poses an imminent danger
to his physical health... 36.

2. The concept of psychiatric
emergency will not further
the state's interest in
preventing further mental
deterioration or chronicity
of mental disorder ..... 38.

3. Expansion of the definition
of emergency to include the
concept of psychiatric emer-
gency denies involuntarily
committed patients equal
protection of the laws... 42.

4. Expansion of the definition
of emergency to include the
concept of psychiatric
emergency is an unconstitu-
tional delegation of legis-
ee eee ee

III. DUE PROCESS REQUIRES COURTS
TO EXERCISE "SUBSTITUTED
JUDGMENT" WHEN THE STATE ACTS
AS PARENS PATRIAF ON BEHALF

Page No.

OF PATIENTS WHO HAVE BEEN
JUDICIALLY DETERMINED
INCOMPETENT ...... . 57.

CONCLUS ION . * . . . . . . . . 7 5 9 .

vi.

TABLE OF AUTHORITIES

Cases ae, Page No.
Abrams v. U.S., 250 U.S. 616 a

yaya at he oy 8. 9B, 38
Baxstrom v. Herold, 383 U.S. “ss
Ve i . ee ra ae
Breichaupt v. Abram, 352 U.S. Fe

Cameron v. Mullen, 128 U.S.App.
.C. , .2d 193 (D.C.
DURA TAOOED oe a ee Ole 0, bl % 31

Canterb v. Spence, 150 U.S.
App D 7 263, 464 F.2d 772

(Dec Cc. Cir.), cert. denied 409

ywe AOOS CROPET bcc © 20

vii.

Table of Authorities Continued

Cases Page No.
Doremus v. partes} Pugs F. dian 3
.Ne } : 26

Erickson v. Dilgard, 44 Misc.2d

27, 252 N.Y.5. 20 705 (1965) . 46
Guardianship of Roe, Mass. __,

421 NE 24 We UESOL)s o co ute | Pebay ll ,20,

58, 59
Goedecke v. State Dept. of
Institutions, 603 boa 123
(Colo. 1979) ...... Pate 7
Griswold v. conn. “as U.S. 479
(1965). > . . Se 1.2..." O° - 6 ae» @ 8

Hall v. ches ee Co., 242
We 7 rea (ee 33
In re Ballay, 157 U.S.App.D.C.
59, 482 F.2d 648 (D.C. Cir.

ie ME ears be 6. 8 36
In re Boyd, 403 A.2d een ie C.

pp. 9) “ee Bete |
In re Brooks Estate, 32 I11.2d 36l,
In re Colah (The Parsee Merchant's

ase), aly q ».

(n.s.) 209 (N.Y.C.P. 1871). . 34
In re K.K.B., 609 P.2d 747

TEE ASOO) «ete ee 0 8 6 7,35 05%

41,59

In re inlan, 70 N.J. sh 355
Ia ent (1976) t Suaiak Sava ae

viii.

Table of Authorities Continued

Cases Page No.

a Eee te ay ‘ae ) oh OF
32
Johnson ve Milk Marsetie Board,
Se eke osc. ures 53

Kaimowicz i Mich. ae of Mental
ea t >.

L.W. 7063, "9 Prison Law Rptr. 433
(Mich, Cir. Ct., Wayne Cty.,
maen., July 1G, 1973... « « 8, 36,

Lessard v. Schmidt, 349 F.Supp.
dD. SS 1) eee ee 26, 43

Lynch v. Baxley, 386 F.Supp. 378

(HD. Ala. 1574) BS eee Oe ag 26, 36
Mackey v. Procunier, 477 F.2d

577 (th Cir. 1973) ..... 19
Morr yssty Vv. Brewer. 408 U.S.

- _ 4 . -_ . . . . 3 0

Nelson v. Heyne, 355 F.Supp.

451. (N.D. Me tkOT a) 'w -9 te0,,6 25

O'Connor v. Donaldson, 422 U.S.
SES -CRSTOEt ae et Wr* 0 0 8 ee 18,25,28,
36,37,40,
43,44,57
Olmstead v. U.S., 27 U.S. 479
(1928). . . oe were. © 8 © 78 18, 56

ix.
Table of Authorities Continued

Cases Page No.
Palko v. Conn., 302 U.S. 319 -
(1937) . . >. .* CTF a Te a? . >.

Panama Refining Co. v. Ryan, 31

ee 0) eae tie seers » 50

Pharmaceutical Society of N.Y.
v. Letkowitz, 454 F.Supp. I175,

. 1978) aff'd 586 F.2d

953 (2d Cir. 1978). ..... 7
Price v. Sheppard, 377 Minn. 25,
WwW. CApTOR cig 6's ¢ 30

Rennie v. Klein, 462 F.Supp.
sews. BEFOP 0 oc 8 6 « 17, 10

Rennie v. Klein, 476 F.Supp.
. Supp. 294, aff'd in
pare. rev'd in part, Nos. 79-
» 79-2577 ied Cir. July
9, 1981), cert. denied, U.S.

, 110 S.Ct. 3059, 69 L.Ed.
we Nee CURE co wis a sie e 28, &

Rennie v. Klein, Nos. 79-2576
an - 3rd Cir., filed
ee Seyi ROSE) co e's cc 0 0 0 Boat enee
30,32

Rochin v. California, 342 U.S. 165
~~ 1952) . _ _ >. _ .* 7 >. >. . __ _ wih Psa

Roe v. Wade, 410 U.S. 113, (1973) . 8,9,18

Rogers v. Okin, 478 F.Supp. 1342
¢D Mase. 1971), aff'd in part,
rev'd in part, & renended, 634 9,22,23,
F.2d 650 tist. Cir, bo 0 27,31,54

x.

Table of Authorities Continued

Cases Page No.

Rogers v. Okin, 634 F.2d 650
Tse Cir. 1980), cert granted
No. 80-1417 (April 20, I98I) . 7,9,32,34,
- > fey |
Runnels v. Rosendale, 499 F.2d
t v. BD) vei. teiby 6p 7

Schecter Corp. v. U.S., 295 U.S.
195 (1935) . 7 >. . . >. . . >. . 51452

Schloendorff v. Soctecy of N.Y.
sp ta s, e4e ’

RD: ee 8 ge % ‘ 11
Scott v. Plante, 532 F.2d 939
CNG aes BPIO) kes. s 0 2 cles 7,8,10,

17,19,27,
35

Shapiro v. Thompson, 194 U.S.
. ig BE eg ee eee eee ee 26

Skinner v. Oklahoma, 316 U.S. 535

* . . 7 ae Je ©. sae ee, S72 ee 12
Snyder v. Mass.,.291 U.S. 97
4) 7 7 . A. Re ieee LE Ree . . . 14

Souder v. yepuire 1 F. ss eg
a. 1976) she . Tcxe

Specht v. Patterson, 386 U.S.
7 _ . >. oy jl HO Ree re 57

Superintendent of Belchertown

Vv. Saikewicz, 373 Mass. 726

370 N.E.2d G17 (1977) . . . . 7,10,16,21,
33,57,58

a

Table of Authorities Continued

Cases Page No.
Union Pacific R. Co. v. Botsford,
SOE Cals JE CROOAP 0 0 a8. ere ae
25
United States v. Reidel, 402 U.S.
ee Ee Oh A bode 8 1 wise 18, 21

Vecchione v. Wohlgemuth, 377
F.Supp. 1361 (E.D. Pa. 1974) . . 31, 32

Vitek v. Jones, 445 U.S. 480 ts

Winters v. Miller, 446 F.2d 65
r.), cert. denied 404
pe wee APE EP o ¢ 0.0 0. 6. 0. 0 20a,
43,46

Wolff v. McDonnell, 418 U.S.
539 (1974) . >. .* . . . . . >. — . 29, 30

Zoski v. Gaines, 206 N.W. 99
(Mich. 1935) * . . - . >. * 7 *. 47

Articles and Books

Berger, Hamburg and Hamburg, "Mental
Health: Progress and Problems,"
106 Daedulus 261 (1977) ..... 39

Cantor, "A Patient's Decision to
Decline Lifesaving Medical
Treatment: Bodily Integrity
v. The Preservation of Life," 26
Rutgers Law Review 228, 242 (1973). 14

Diagnostic and Statistical Manual
oF Mental Disorders, American
ose Association, 3d ed.
Ce. GMS, ate te wie) © eyes 0 20,55%%

xii.

Table of Authorities Continued

Articles and Books Page No.

Hanslowe, "Regulation by Visible
Public and Invisible Private
Government," 46 Texas Law Rev.

88 (1961) . 7 . 7 . . . . . 53

Liebmann, "Delegation to Private
Parties," 50 Ind.L.J. 657 (1975) 54

Rawls, J., A Theory of Justice ,
(1971) . > * > > .* . . *. . . > . 34

Robertson, "Organ Donations by
Incompetents and the Substituted
Judgment Doctrine," 76 Colum.L.

Rev. 48 (1976) .....-. sora oe

"State Laws Governing Civil
Commitment ,"" 3 M.D.L.R. 206
CEST I? os: Awl eee be) 666 ee Oe

Van Putten & Ray, "Subjective
Response as a Predictor of Outcome
in perme ea | 35 Arch. Gen.
Psychiatry 477 (1978) ...... 24

Van Putten, "Why Do Schizophrenic
Patients Refuse to Take Their
Drugs?" 31 Arch. Gen. Psychiatry
Ge Rare) Sek). ew & ue 8 0 8. 6 8 24

Warren, David G., Problems in
Hospital Law (3d ed. 1978)... 45,47

Wirtz, "Government by Private
Groups," 13 La.L.Rev. 440 (1953) 53

Statutes and Regulations

Calif. Admin. Code, Title 9, §813 . 49
M.G.L.A., c.123, §53 (1980) .... 49
M.G.L.A., c.19, §10 (1980) .... 49

xiii.

Table of Authorities Continued
Miscellaneous Page No.
Public Hearings on Psychiatric

s, July ; » oan
Francisco, California... . 24

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980

MARK MILLS, et al.,
Petitioners,

v.
RUBIE ROGERS, et al.,

Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the First Circuit

BRIEF FOR
PATIENTS' RIGHTS ADVOCACY SERVICES, INC.
AS AMICUS CURAIE

INTEREST OF AMICUS CURAIE

Patients’ Rights Advocacy Services
("PRAS") is a non-profit corporation com-
posed of patients’ rights advocates and
attorneys who represent mental patients in
San Francisco when they complain of viola-
tions of their rights under federal and

California law. PRAS is funded, in part,

y #

by the National Institute of Mental Health
to engage in law reform activities in the
area of mental health patients’ rights. It
also provides advocacy services which are
mandated by the State of California.

Among the complaints received by PRAS
over the course of the last three years,
complaints concerning the forcible admin-
istration of anti-psychotic medications are
by far the most common and the most diffi-
cult to resolve. The psychiatric profession
in California recognizes no right to refuse
anti-psychotic medication among involun-
tarily committed patients, and patients
frequently find that their complaints to
hospital staff concerning side effects are
interpreted as psychosomatic symptoms of
their illness. Advocates at PRAS, acting
on behalf of the patients, are left with
well-reasoned cases in other jurisdictions
and disputed ethical standards of the psy-
chiatric profession as tools for negotia-

tion.

3.

At public hearings on psychiatric
drugs, recently held in San Francisco,
several authorities, representing both
sides of the issue, recognized the unbri-
dled abuses of these medications in
California, the alarming nature of their
side effects, and the need for resolution
of the legal issues involved.

Amicus seeks an affirmation from this
Court of the fundamental right of its
clients to resist the forcible adminis-
tration of these dangerous drugs which
they, themselves, so often consider a pro-
found invasion of their privacy and an

affront to their dignity.

SUMMARY OF ARGUMENT

Involuntarily committed mental patients,
have a fundamental right in a non-emergency
to refuse medication based in the Constitu-
tional right to privacy, right to bodily
integrity and the right to freedom of
thought.

4,

The state must therefore show a compel-
ling interest in overriding these rights.
The cases consistently show that the state
has no interest in depriving patients of
these rights in a non-emergency.

Moreover, the state is not granted the
authority to forcibly medicate patients as
part of the authority to commit them. The
right to refuse medication is a fundamental
right, and the state must comply with the
requirements of procedural due process be-
fore the right can be denied. Commitment
hearings are insufficient for that purpose
in Massachusetts because forcible medica-
tion constitutes a major change in confine-
ment and requires additional due process
considerations.

Moreover, the state cannot constitu-
tionally deprive patients of their funda-
mental right to refuse medication by pre-
suming their incompetence once committed.
Involuntarily committed patients are pre-

sumed to be competent under the law of

5.

Massachusetts and other states. In addi-
tion, the requirements of due process do
not end with a determination of incompe-
tence. A court must, as a requirement of
due process, exercise a "substituted judg-
ment” for those patients who are found in-
competent.

In addition, the First Circuit Court
of Appeals’ expansion of the District
Court's emergency standard is unconstitu-
tional since forcible medication to prevent
mental deterioration is an unconsitutional
exercise of state power. Courts have held
that the state cannot constitutionally act
under its police power to forcibly medicate
involuntarily committed patients in a non-

emergency; and under its parens patriae

authority the state may only act when a
patient has been found incapable to decide
and in imminent physical danger. Moreoever,
forcible medication will do nothing to fur-
ther the state's interest in preventing

further mental deterioration. Finally,

6.

the Ninth Circuit's expansion of the defini-
tion of emergency to include the concept of
psychiatric emergency is an unconsitutional
delegation of power. The result is an un-
bridled discretion in the hands of psychia-
try, and a usurption by that profession of
the judicial power to decide the patients’

right to fundamental due process.

ARGUMENT

I. THE STATE OF MASSACHUSETTS IS
CONSTITUTIONALLY BARRED IN
NON-EMERGENCY SITUATIONS FROM
ADMINISTERING DANGEROUS PSY-
CHOTROPIC MEDICATIONS TO
INVOLUNTARILY COMMITTED MENTAL
PATIENTS AGAINST THEIR WILL.

A. Forcible Medication Of Invol-
untarily Committed Mental
Patients Violates Fundamental
Rights Guaranteed To Them By
The Constitution Of The
United States

1. Forcible medication of involuntari-

ly committed mental patients violates their

fundamental right to privacy in decisions

concerning their own bodies. Courts through-

out the country have held that all patients
have a fundamental right to privacy in de-

ciding whether or not to submit to medical

treatment. Rogers v. Okin, 634 F.2d 650
(lst Cir. 1980), cert. granted, No. 80-1417
(April 20, 1981)(hereinafter referred to as

"Rogers II"); Runnels v. Rosendale, 499 F.
2d 733 (9th Cir. 1974); Mackey v. Procunier,
477 F.2d 877 (9th Cir. 1973); Scott v.
Plante, 532 F.2d 939 (3rd Cir. 1976); Rennie
v. Klein, 462 F.Supp. 1131 (D.N.J. 1978)

(hereinafter referred to as "Rennie I");
Davis v. Hubbard, 506 F.Supp. 506 F.Supp.
915 (N.D. Ohio 1980); Pharmaceutical Society
of New York v. Lefkowitz, 454 F.Supp. 1175
(S.D.N.¥. 1978), aff'd 586 F.2d 953 (2d
Cir. (1978); Souder v. McGuire, 423 F.Supp.
830 (M.D. Pa. 1976); In re K.K.B., 609 P.2d
747 (Okla. 1980); Guardianship of Roe,

Mass. _, 421 N.E.2d 40 (1981); Goedecke

v. State Dept. of Institutions, 603 P.2d ’
123 (Co. 1979); In re Quinlan, 70 N.J. 10,
355 A.2d 646 (1976); Superintendent of
Belchertown v. Saikewicz, 373 Mass. 728,

370 N.E.2d 417 (1977), Kaimowicz v. Mich.
Dept. of Mental Health, No. 73-19434 A.W.,
42 U.S.L.W. 2063 (Mich. Cir. Ct., Wayne

County, Mich., July 10, 1973).

The fundamental right to privacy
exists in the penumbra of rights specifi-
cally enumerated in the Bill of Rights.
Griswold v. Connecticut, 381 U.S. 479
(1965). This Court, in articulating the

right to privacy, has looked to liberty
interests contained in the First Amendment
freedom of thought, Stanley v. Georgia,
394 U.S. 557 (1969) and the Fourteenth
Amendment right to bodily integrity. Roe
v. Wade, 410 U.S. 113 (1973).

Forcible administration of anti-psy-

chotic drugs in a non-emergency is inimi-
cal to both the right to freedom of thought

(Scott v. Plante, supra) and the right to

bodily integrity (Rennie v. Klein, Nos. 79-
2576 and 79-2577 (3rd Cir., July 9, 1980)

(hereinafter referred to as "Rennie II).
After examining these Constitutional

underpinings in Roe, this Court concluded

that the fundamental right to privacy is

“broad enough to encompass a woman's de*i-

9.

sion whether or not to terminate her preg-

nancy." Roe v. Wade, supra at 153. In

arriving at that conclusion the Court con-
sidered the fact that "[s]pecific and di-
rect harm. . . may be involved." Id. at
153. Specifically, they noted the potential
for physical and psychological harm and
social stigma that could last a lifetime.
The District Court below made specific
findings concerning the immediate and future
harm caused by anti-psychotic medications.
Rogers v. Okin, 478 F.Supp. 1342, 1360 (D.

Mass. 1971), aff'd in part, rev'd in part,
and remanded, 634 F.2d 650 (lst Cir. 1980)

(hereinafter referred to as "Rogers I").

The court found that the drugs influence
chemical transmissions to the brain and are
mind-altering, and described a whole series
of immediate neurological side effects which
have led another court to describe these
drugs as "painful and frightening," Souder

v. McGuire, supra at 832.

In addition, the court noted signifi-
cant side effects involving physical

10.

neurological damage which is irreversible,

and which may result in serious psycholo-
gical and physical disabilities. Foremost
among these side effects found is tardive
dyskenisia. Tardive dsykenisia is a
disease characterized by involuntary move-
ment, which can interfere with swallowing
and effect all motor activity. The court
pointed to two studies which showed the in-
cidence of tardive dyskenisia among chron-
ically hospitalized schizophrenics to be
between 502% and 56z.—1/

For these reasons, the right to priva-
cy articulated in Roe is broad enough to
encompass a patient's decision as to whether
to accept or to refuse anti-psychotic medi-

cations. Scott v. Plante and Davis v.

Hubbard, supra. Consequently, the First
Circuit Court of Appeals, below, reasoned

soundly when they stated:

_1/ See Rennie I, supra at 1300-1303 for that
court's findings for the specific effects of
forced medication on the individuals involved in
that case.

1l.

We begin our yee with
what seems to us to be an intui-
tively obvious proposition: a
person has a pseenb agines omg
protected interest in being left
free by the state to decide for
himself whether to submit to the
serious and potentially harmful
medical treatment that is repre-
sented x A the administration of
antipsychotic drugs. .. . [T]his
interest exists, most likely as
part of the penumbral right to
privacy, bodily integrity or
personal security.

None of the parties or amici
in this suit contest the
correctness of this general pro-

position. Rogers II, supra at
653-654 (citations omitted). 2/

2. Forcible medication of involuntar-

ily committed mental patients violates their

fundamental right to bodily privacy and

personal security guaranteed by the Four-

teenth Amendment to the United States Consti-

tution. This right traces its origin to
tort law principles enunciated in Canterbury
v. Spence, 150 U.S.App.D.C. 263, 464 F.2d
772 (D.C. Cir.), cert. denied 409 U.S. 1064
(1972) and Schloendorff v. Society of N.Y.

2/ Despite this contention by the court, Petitioners
argue on page 17 of their brief that Respondents
have no constitutional right to refuse medication.

12.

Hospitals, 211 N.Y. 125, 105 N.E. 92, 93

(1914) where Justice Cardozo stated:

"Every human being of adult years or sound
mind has the right to determine what shall
be done with his own body." See also, Union

Pacific R. Co. v. Botsford, 141 U.S. 250
(1891).
In Ingraham v. Wright, 430 U.S. 651

(1977), this Court recognized that this
right, held so sacred and so carefully
guarded by the common law, is a liberty in-
terest protected by the Due Process Clause
of the Fourteenth Amendment. The Court held:

Among the historic liberties
was a right to be free from
and to obtain judicial relief
for unjustified intrusions on
personal security.

While the contours of this
historic liberty interest in
the context of our federal
system of government have not
been defined precisely, they
always have been thought to
encompass freedom from bodily
restraint. . .. See Rochin v.
California, 342 U.S. 1

Id. at 672. In support of that Due Process
right, the Court cites Skinner v. Oklahoma,
316 U.S. 535 (1942), Jacobson v. Mass., 197

13.

U.S. 11 (1905), and Union Pacific R. Co. v.

Botsford, supra.

Moreover, it is clear that this right
to bodily integrity and personal security is
a "fundamental" right. See Rochin v. Calif.,

supra at 169. One authority has concluded
that "no more basic aspect of personal pri-
vacy can be found than bodily integrity, and
this interest is entitled to concommitant
constitutional protection." Cantor, "A Pa-
tient's Decision to Decline Lifesaving Med-
ical Treatment: Bodily Integrity v. The
Preservation of Life," 26 Rutgers Law Review

228, 242 (1973).

Consequently, in these cases, this
Court has weighed the extent of bodily harm
and intrusiveness against the state interests

involved. In Rochin, supra, the Court was

faced with a situation where contraband had
been forcibly pumped from the stomach of a
protesting defendant. The Court looked to
the force and brutality used in that case

and analyzed the law in this way:

14.

Due process of law is a summarized
constitutional guarantee of a res-
pect for those personal immunities
which, as Mr. Justice Cardozzo
twice wrote for the Court are ‘so
rooted in the traditions and con-
science of our people as to be
ranked as fundamental,’ Snyder v.
Massachusetts, 291 U.S. 97, I05,
or are “implicit in the concept
of ordered liberty.' Palko v.
a tae to U.S. 319, 325.

- at °

It does not fairly represent these
decisions to senpest that they le-
galize force so brutal and so
offensive to human dignity in
securing evidence from a suspect
as is revealed by this record.
(Id. at 174.)

In Breithaupt v. Abram, 352 U.S. 432

(1957), the Court recognized that same Due

Process right, citing Rochin. In that case

a blood test was performed on an unconscious
defendant in order to determine criminal
liability for drunken driving. The Court,
however, found no evidence of harm, brutali-
ty or violation of human dignity in per-
forming a routine blood test on an uncon-
scious defendant. On the other hand, the
Court found a compelling state interest in

preventing deaths on the highways. Id. at

15.

435, 436. For these reasons, the Court up-
held the lower court's criminal conviction.
In Jacobson, supra, the Court ruled

on a Massachusetts statute which required
all citizens to submit to a smallpox
vaccination. On the facts of that case
the Court held that the "police power of
a state" (Id. at 38) overrode the Four-
teenth Amendment right because of the
important state interest in controlling
a smallpox epidemic. However, the Court
clearly indicated that the result hinged
on the fact that no case of harm to the
individual had been presented. They
even went so far as to read a gloss onto
the statute to preserve the fundamental
Fourteenth Amendment right to bodily
integrity involved in that case:

[Wje are not inclined to

hold that the statute es-

tablishes the absolute rule

that an adult must be vac-

cinated if it be apparent

or can be shown with reasonable

certainty that he is not at the
time a fit subject of vaccina-

16.
tion, or that vaccination, by
reason of his then condition
would seriously impair his health.
Id. at 38, 39.
This right has been used to uphold the
refusal by patients of medical intervention

in other contexts. In Saikewicz, supra at

424, the court recognized a right of an in-
competent mentally retarded person to refuse
chemotherapy for leukemia based upon that
person's right to bodily integrity and per-

sonal security. In Kaimowitz, supra, the

court held that non-consensual experimental
psychosurgery performed on a mental patient
constitutes a violation of bodily integrity.

In balancing the interests accord-
ing to the principles enunciated in these
cases, it is clear that forcible administra-
tion of dangerous anti-psychotic medications
to unwilling mental patients violates their
Due Process right to bodily integrity and
personal security.

As noted above these drugs cause

serious side effects which are frightening

and immediate. They also cause physical and

17.

psychological damage which is irreversible

for significant numbers of people. For

these reasons, in Guardianship of Roe, supra

at 52, the court stated: "We can identify

few legitimate medical procedures which are
more intrusive than the torcible injection

of anti-psychotic medication." Certainly,

the forcible administration of these drugs

is more intrusive, more violative of bodily
integrity, personal security and human dig-
nity than an almost risk-free and painless,
routine blood test or the equally risk-free
vaccination for smallpox.

Moreover, it has been consistently
held that the state has no interest in for-
cibly medicating mental patients in non-
emergency situations. See Argument IB,
below.

Consequently, based upon the right to
bodily integrity and personal security, the
courts below and other courts have upheld
the right of mental patients to refuse anti-
psychotic medications. Rennie I, supra and
Scott v. Plante, supra.

18.

3. Forcible medication of involuntar-

ily committed mental patients violates their
First Amendment right to the free generation

of ideas.

In 1919, the Court stated that the
First Amendment meant that the government
does not have the power to control men's
minds. Abrams v. United States, 250 U.S.
616, 630 (1919). In O'Connor v. Donaldson,
422 U.S. 563, 575 (1975), the Court stated

that a state could not constitutionally
"fence in the harmless mentally ill solely
to save its citizens from those whose ways
are different." The cases of Olmstead v.

United States, 27 U.S. 479 (1928); Stanley

V.Georgig, supra; Roe v. Wade, supra; and
United States v. Reidel, 402 U.S. 351 (1971)

have all found a fundamental right to pri-
vacy in the realm of thought and decision.
The District Court in this case applied
the principlws of those cases and held that
the forcible administration of anti-psycho-

tic drugs violated mental patients’ First

19,

Amendment right to think in that those drugs
“affect and change a patient's mood, atti-

tude and capacity to think.” Rogers I, supra

at 1366. The court in Rogers stated:

Without the capacity to think,

we merely exist, not function.

Realistically, the capacity to

think and decide is a fundamen-
tal element of freedom.

Id. at 1367. Im Mackey v. Procunier, supra

at 877 forcible administration of a drug in
connection with shock therapy was held to be
an “impermissible tinkering with the mental
process" in violation of the First Amendment.

See also Scott v. Plante, supra at 946.

In Kaimowitz, supra, the court was
asked to rule on the First Amendment claims
presented by the non-consensual administra-
tion of psychosurgery. That court held:

A person's mental processes,
the communication of ideas,

and the oe gged eget of ideas,
come within the ambit of the
First Amendment. To the extent
that the First Amendment pro-
texts the dissemination of ideas
and expression of erage ge it
ome at must protect the indi-
vidual'’s right to generate
ideas. Id. at 477.

20.

Quoting Justice Cardozo, the court said:
"Implicit . . . in the very notion of li-
berty is the liberty of the mind to absorb
and beget."" Id. at 477.—2/

The court in Guardianship v. Roe, supra

at 53 indicated that because of the profound
effect that anti-psychotic medications have
on thought processes, courts must afford

the same protections to patients receiving
these drugs as is afforded to patients who
undergo psychosurgery. Consequently, the

same First Amendment protections apply.—?/

3/ The magnitude of the First Amendment concerns in
this case is more fully appreciated when one examines
the "symptoms" of mental illness which psychiatrists
diagnose and treat with medication. In The Diagnostic
and Statistical Manual III, 3d ed. 1980 (the official
diagnostic manual of the American Psychiatric Ass.)
(hereinafter referred to as "DSM-III"), one of the
symptoms of schizophrenic disorder is described as
“poverty of content of speech, in which speech is
adequate in amount but conveys little information be-
cause it is vague, overly abstract or overly concrete,
repetitive or stereotyped." There is no question that
it is nonetheless speech and free thought.

4/ It is compelling to note in this regard that
other courts have noted that these mind-altering
drugs may prevent mental patients from being able to
exercise their procedural due process rights. Doe v.
Gallinot, No. 80-5658, (9th Cir. September 20, 1981).
Davié~v. Hubbard, supra.

21.

B. The State Of Massachusetts Has
No Interest In Forcibly Admin-
istering Dangerous yon rh pe + a
Medications To Involuntarily Com-
mitted Mental Patients In Non-
Emergency Situations.

Since the involuntarily committed men-
tal patients in this case have fundamental
rights to privacy, bodily integrity and
freedom of thought (see Argument IA, above),
the State of Massachusetts must show a com-
pelling interest in order to overcome those
rights. Shapiro v. Thompson, 194 U.S. 618,
(1959).

The state in the instant case can show

no interest to justify their forcible medica-
tion of involuntarily committed mental
patients in a non-emergency. See, e.g.,

Davis v. Hubbard, supra and Rogers II, supra.

Moreover, the ruling of the court be-
low on this point is consistent with the
rulings of other cases involving the right
to refuse treatment.

For example, in Saikewicz, supra, the

court made this analysis of the states' in-

terests in cases involving the right to re-

22.

fuse treatment:

[A] survey of recent decisions
rs gps the difficult question
of the right of an individual

to refuse medical intervention
or treatment indicates that a
relatively concise statement of
countervailing State interests
may be made. As distilled from
the cases, the State has claimed
interest in (1) the preservation
of life (2) the protection of the
interests of innocent third par-
ties (3) the prevention of sui-
cide and (4) maintaining the
ethical integrity of the medical
profession.

Id. at 425. See also Guardianship of Roe,

supra at 59.

The District Court in this case held
"that a committed mental patient may be for-
cibly medicated in an emergency situation
in which a failure to do so would result
in a substantial likelihood of physical
harm to that patient, other patients or to
staff members of the institution.” Rogers
I, supra at 1379.

This standard indicates that the state
police power may properly be exercised and
the patient forcibly medicated in situations

where the state has an interest in preventing

23.

physical harm to the patient (e.g., suicide)
or others. Therefore, the District Court in
this case found the first three interests

mentioned in Saikewicz, supra, to be suffi-

ciently compelling to justify forcible medi-
cation in an emergency.
Consequently, the only interest men-

tioned in Saikewicz. which the state may

assert as justifying its forcible medica-
tion of mental patients in non-emergency
situations is the maintenance of the ethi-
cal integrity of the medical profession.
According to the American Psychiatric Asso-
ciation (hereinafter referred to as "APA"),
forcible medication of mental patients in
non-emergency situations is inconsistent
with the maintenance of the ethical integri-
ty of the medical profession. See Rogers
I, supra at 1370, n.37. In Rennie v. Klein,
476 F.Supp. 1342, 1370, aff'd in part,
rev'd in part, Nos. 79-2576, 79-2577 (3rd.

Cir. July 9, 1981), cert. denied, U.S:
110 S.Ct. 3059, 69 L.Ed.2d 425 (1981), the

court relied heavily on two clinical studies

24,

which led them to conclude that the right of
mental patients to refuse anti-psychotic
medications in non-emergency situations
would serve to maintain the ethical inte-
grity of medical standards:

The court is convinced that
where patients’ concerns

and feelings may be more
freely aired, and observable
side effects are more closely
monitored, medication will

be used more wisely. If the
refusals of involuntarily pa-
tients are fairly acknowledged
and independently considere
in accordance with the legal
criteria, a significant
number of patients will re-
ceive less or no medication,
frequently to their benefit.

Id. at 1306. See also Van Putten, "Why Do
Schizophrenic Patients Refuse to Take Their
Drugs?", 31 Arch. Gen. Psychiatry 67 (1974)

and Van Putten and Ray, "Subjective Response
as a Predictor of Outcome in Pharmacothera-

py," 35 Arch. Gen. Psychiatry 477 (1978) .—2/

_5/ Moreover, authorities on the use of anti-psychotic
drugs have recently stated at public hearings in San
_ Francisco that the requirement of consent is clini-
cally superior to forcing these medications on pro-
testing patient. Public Hearings on Psychiatric
Drugs, held on July 23, 1981 at San Francisco,
California. ;

25.

Assuming, arguendo, that the state has
an ethical interest in forcing dangerous
medications on patients in non-emergencies,
the interest is not sufficiently compelling
to override the important Constitutional
rights involved. See Saikewicz, supra at

427:

{I1])£ the doctrines of in-
formed consent and right to
privacy have as their foun-
peepee e right — gape A
ntegrity,[see Botsford, supra]
and Seatkel of one’s fate,

then those rights are superior
to the institutional consider-
ations. .

See also In re Quinlan, supra.

Similarly, the state's institutional
concerns for order and control are insuffi-
cient to override the patients’ fundamental
right to refuse anti-psychotic medications.
Nelson v. Heyne, 355 F.Supp. 451 (N.D.
Indiana 1973).

Moreover, the state's obligation to

provide treatment (see O'Connor, supra) can-

not be interpreted as a state's interest

which overrides the patient's fundamental

26.

rights. See Rogers I, supra.

C. The State Of Massachusetts Cannot
Constitutionally Deprive Mental
Patients Of The Right To Refuse
Medication By Merely Committing
Them Against Their Will.

1. Commitment hearings in Massachu-

setts do not comport with what due process

requires before the right to refuse medi-

cation can be denied. The cases cited in

Argument IB, above, clearly establish that
involuntarily committed mental patients
have a fundamental Constitutional right

to refuse medication. It is axiomatic that,
as a matter of substantive due process, a
state must show a compelling interest in
otder to deny a fundamental right. Shapiro

v. Thompson, supra.

Consequently, just as a state must
comply with the requirements of due process
in depriving a mental patient of the funda-
mental right to liberty (Doremus v. Farrell,
407 F.Supp. 509, 514 (D.Neb. 1975); Lessard
v. Schmidt, 349 F.Supp. 1078 (E.D. Wis.

1972); Lynch v. Baxley, 386 F.Supp. 378
(M.D. Ala. 1974)), so must a state comply

27.
with the requirements of due process in de-
priving a mental patient of the fundamental
rights of privacy and bodily integrity
which are involved in the patient's deci-
sion to refuse or accept anti-psychotic

medication. Rennie II, supra at 13; Scott

v. Plante, supra at 946; Winters v. Miller,
446 F.2d 65 (2nd Cir.), cert. denied 404
U.S. 985 (1971); Covington v. Harris, 419
F.2d 617, 624 (D.C. Cir. 1969); Davis v.

Hubbard, supra at 938.

Moreover, it is clear that an adjudi-
cation authorizing commitment does not per
se authorize the forcible administration
of anti-psychotic medications. The state's
interests which might override a patient's
right to liberty do not also override the
patient's right to refuse medication. As
the court pointed out in Rogers I, supra:

The patient is in an insti-
tution only because he is
unable to function safely
in society, and so there is
a public interest in civil
commitment. Id. at 1367.

After commitment, the balan-
cing of state versus patients'

28.

interests must be done in the
context of the community setting.
That the state may forcibly
medicate a committed patient
given an emergency that threatens
the physical safety of patients
and staff -- the institutional
community -- is not the issue.
Such action is necessary to pro-
tect the members of that commun-
ity and is consistent with the
basic rationale relied on in
Jacobson. Given a non-emergency,
ever, it is an unreasonable
invasion of privacy, and an
affront to basic concepts of
human dignity, to permit forced
injection of a mind-altering
drug into the buttocks of a
competent patient unwilling to
give informed consent. That
type of treatment is not neces-
sary to protect the general
public, since the patient has
already been quarantined by com-
mitment. Of course, there being
no emergency, the hospital com-
wage? s in no danger. Id. at

The Court in Davis v. Hubbard, supra, comes

to the same conclusion, reasoning from the

principles enunciated in O'Connor, supra:

Having been institutionalized,
they [patients] no longer pre-
sent a danger to society and,
indeed, may not present a danger
to those in the institution.
To the extent this is true,
O'Connor suggests that such pa-
ents cannot further be de-
prived of constitutionally pro-
tected interests by treating

29.

the symptoms of an illness

with drugs merely because the
symptoms of the illness are
strange and eccentric behavior.
In other words, if not dangerous,
something more than the fact of
mental illness is required be-
fore the state may ignore the
patient's interests.

Davis v. Hubbard, supra at 936, n.27. See
also Addington v. Texas, 441 U.S. 427 (1979).

The reasoning of these cases indicates
that mental patients do not automatically
lose all of their rights upon being commit-
ted. It is clear that the patient "re-
tain[s]) a residuum of liberty that would be
infringed by compulsory medication ‘without
complying with minimum requirements of due
process.’ Vitek v. Jones, 445 U.S. at 491."

Rennie II, supra at 13.

The court in Rennie II reasoned that

just as “solitary confinement ‘represents
a major change in the conditions of con-
finement' in a prison setting, Wolff v.
McDonnell, 418 U.S. at 571-72, n.19, so

“compulsory medication of a non-consenting

patient with its concomittant risks must be

30.

deemed a ‘major change in the conditions of
confinement.'" Id. at 13 and 14. See also
Morrissey v. Brewer, 408 U.S. 471, 482

(1972) .-6/
The Court has held that prisoners are

not stripped of all of their rights when
confined in a prison, Wolff v. McDonnell,
418 U.S. 539, 555-556 (1974), and so the
court in Rennie II has concluded that "the

Constitution is at least as viable behind
the walls of a psychiatric hospital as in
a prison." (citations omitted) Id. at 19.

2. The State of Massachusetts may not

deprive involuntarily committed mental
patients of their right to refuse medica-

tion by presuming their incompetence.

The vast majority of cases ruling on
the point presume involuntarily committed

mental patients to be competent. Rogers II,
supra at 659;-Rennie II, supra at 19; Colyar

6/ There is dictum to the contrary in Price v.
rd, 307 Minn. 25, 239 N.W.2d 905,
(1976)

31.

v. Third Judicial District Court for Salt

Lake County, 469 F.Supp. 424 (D.Utah C.D.

1979); Cameron v. Mullen, 128 U.S.App.D.C.
235, 244, n.29, 387 F.2d 193, 202, n.29 (D.C.
1967); Vecchione v. Wohlgemuth, 377 F.Supp.
1361 (E.D. Pa. 1974); In re Boyd, 403 A.2d
744 (D.C. App. 1979); and In re K.K.B.,

supra. This is also reflected in the sta-
tutes of many states. See "State Laws
Governing Civil Commitment," 3 M.D.L.R. 206
(1979). In addition, the District Court in
this case found that "although committed
mental patients do suffer at least some im-
pairment of their relationship to reality,
most are able to appreciate the benefits,
risks, and discomfort that may reasonably
be expected from receiving anti-psychotic
medications. This is particularly true for
patients who have experienced such medica-

tion . . ." Rogers I, supra at 1361.

Moreover, a determination of incompe-
tence does not automatically deprive invol-

untary mental patients of their right to

32.

to refuse medication. "A state cannot ignore
due process and simply seize a person and

administer drugs to him without his consent."
Rennie II, supra at 13. See also Argument I

C,1, above. While due process requires that
there be a judicial determination of incon-
petence prior to a state's exercise of parens

patriae authority (see Vecchione v. Wohlge-

muth, supra), that determination, alone,
does not comport with what is required by
due process in order to deny mental patients’
right to refuse medication. Rogers II,
supra at 661. The Ninth Circuit in this
case has stated:
{W]e do not imply that the
Constitution places no limits
whatsoever on the manner in which
the state may decide how to
treat incompetent patients.
Id. at 661. See also Argument III, below.
As the court noted in Colyar, supra at 430:

"An individual's diminished capacity should

not and does not affect the protection owed
him when the state attempts to deprive him
of his liberty."

33.

II. FORCIBLE ADMINISTRATION OF DAN-
GEROUS PSYCHOTROPIC DRUGS TO
PREVENT FURTHER MENTAL DETER-
IORATION IS AN UNCONSTITUTIONAL
EXERCISE OF STATE POWER.

A. Legitimate Exercise Of The
State's Emergency Police Powers
Is Not Triggered By The Concept
Of Psychiatric Emergency.

The primary justification for compulsory
confinement of psychiatric patients as a
function of the police power is the protection
of the public from dangerously ill indivi-

duals. See, e.g., Jacobson v. Mass., supra

24, 25. Because the police power protects
the public, it is by nature "the least limi-
table of the exercises of government." Hall

v. Geiger-Jones Co., 242 U.S. 539, 548

(1917). Accordingly, it is because the men-
tally ill individual is presently dangerous

to others that he forfeits his right to refuse
treatment (see Argument I).

However forcible anti-psycho-
tic medication of a patient

in a state hospital is not
necessary to protect the atl
eral public. The public is
protected by commitment. If
there is no emergency, hospi-
tal personnel are in no danger;
the only purpose of forcible

34.

medication in these circum-
stances would be to

the patient. In re K.K.B.,
supra at 751.

Therefore, if the purpose of the state
is to protect the mental health of the indi-
vidual, and not to promote the safety of
others, it must act pursuant to its parens
patriae authority: "The state's purpose in
administering drugs forcibly must be to fur-
ther its police power interests." Rogers II,
supra at 656.

B. A Judicial Determination of In-

capacity To Act Is Required
Before The State Acts As Parens
Patriae.

The parens patriae function is an auth-

ority granted to the state by the members of
the community for the protection of their
future well-being. See J. Rawls, A Theory
of Justice, 248-49 (1971). Accordingly,

when the state acts as parens patriae, it

is not empowered to sacrifice the welfare
of the individual to the welfare of others.
See In re Colah,(The Parsee Merchant's Case)

35.

219-22 (N.Y.C.P. 1871).

Therefore, when the state acts pursuant

to the legitimate exercise of its parens
patriae function, it is authorized to deny
the individual no right. ‘Yhis is critical
to understanding why the state, acting as

parens patriae, is not empowered to admin-

ister dangerous psychotropic medications
on an unconsenting involuntarily committed
patient absent a judicial determination of

incompetence to act. Winters v. Miller,

supra; Scott v. Plante, supra; Coylar v.

Third Judicial District Court, supra. Si-

milarly, the Court of Appeals below was
compelled to conclude:

{[A]bsent an emergency, a
judicial determination of
incapacity to make treat-
ment decisions must be made
before the state may rely
on its parens patriae powers
to coreibly nédtcate a

patient. Rogers II, supra at 661.

Thus, the crucial question is whether or not

the state may forcibly medicate an individu-

al, absent a judicial determination of in-

competence to act, solely because it is

36.

reasonably believed that any delay could re-
sult in significant deterioration of the
patient's mental health.

1. The State has no authority to act

as parens patriae unless the individual's

mental deterioration also poses an imminent
danger to his physical health.

An individual cannot be involuntarily
committed pursuant to the state's parens
patriae authority unless the individual is
dangerous to himself. (O'Conrior v. Donald-

son, supra; In re Ballay, 157 U.S. App. D.C.
59, 482 F.2d 648 (1973); Doremus v. Farrell,

supra; and Lynch v. Baxley, supra. A person

is dangerous to himself not because he is
mentally ill, but because he is unable to
provide himself with the basic necessities
to sustain physical life or because he is
self-assaultive:

An individual who cannot pro-
vide for himself the basic
necessities of life (food,
clothing, shelter) or who in-
flicts physical damage on hinm-
self . . . does pose a threat
*to his own well-being. Coylar,
supra at 430.

37.

Compulsory administration of dangerous
psychotropic drugs to prevent further mental
deterioration, in the absence of a threat
to the individual's physical well-being, al-
lows the state to intrude upon fundamental
rights only because the individual is mental-
ly disordered. (See Argument I.) The state
is clearly prohibited from thrusting treat-
ment on an individual only because he is
diagnosed mentally disordered. O'Connor,
supra.

Moreover, since legal incapability to
decide whether or not to accept treatment
is a threshold requirement when the state

acts as parens patriae, even if a mentally

disordered individual does pose a threat to
his physical well-being, but nonetheless re-
mains competent to make a treatment decision,
the state cannot constitutionally interfere:

The state's interest in pro-
tecting him from harm does
not outweigh the competent
individual's right to make
and La out what is perhaps,
one of the most important de-
cisions of his life.

38.

Coylar, supra at 432; cf. Winters, supra.
2. The concept of psychiatric emer-

gency will not further the state's interest

in preventing further mental deterioration

or chronicity of mental disorder.

The State of Massachusetts’ forecast
that the right to refuse dangerous psycho-
tropic drugs will result in deterioration
of psychiatric patients’ mental health, in-
cluding increased psychic suffering and in-
creased chronicity of mental disorder, is
unfounded. The class of individuals whose
mental disorders are responsive to crisis
intervention in the form of forced admin-
istration of psychotropic drugs are already
subject to forced medication pursuant to the
rightful exercise of the state's police

power .—_/ The state is empowered to forcibly

7/ It is important to stress that psychiatrists do
fot treat violence. Rather, they treat mental dis-
orders. However it is the presence of violence or
the threat of violence that empowers the state,
through psychiatrists, to act in the absence of a
judicial proceeding. (See Argument II, infra.) That
the state acts pursuant to its police power does

not mean that the action taken is not de facto in

the individual's, as well as society's, best interest.

39.

medicate these individuals because they in-
evitably present exhibiting violent be-

havior. _8/

However, the class of patients the
state claims it must treat as a result of
psychiatric emergency do not therapeutical-
ly respond to the forced administration of
psychotropic drugs. As pointed out by the
State of Massachusetts:
About half of the available
hospital beds for mentally ill
and mentally retarded patients
(and one-quarter of all avail-
able hospital beds) are occupied
by schizophrenics.

Petitioner's Brief at p.24, citing Berger,

Hamburg and Hamburg, "Mental Health: Pro-

gress and Problems," 106 Daedalus 261

8/ See DSM-III (a manual which is used by virtual-
ly every agency of the Government to diagnose men-
tal disorder). See generally "Substance-Induced
Organic Mental Disorders,” pp. 128-36, including
$§ 303.00, 291.40, 291.30, wherein are described
the type of disorders responsive to forced drug
administration. These disorders are character-
ized by aggressive, beligerent, physically
assaultive behavior, that is etiologic specific.
Recovery occurs within a matter of days.

40.

(1977); J.A., p.207 (J.-166). The signifi-
cance of this important observation is that
in order to make a diagnosis of schizophre-
nic disorder, a finding of substantial de-
terioration from a previous level of func-

tioning must be made. (See DMS-III, supra

at 181-182.) Therefore, should the concept
of psychiatric emergency be adopted by this
Court, all chronic, severely psychotic indi-
viduals, including but not limited to those
with schizophrenic disorders, will be forci-
bly medicated only because they are "men-
tally disordered." That the state cannot
invade fundamental rights only because an
individual is mentally ill is axiomatic.
(O'Connor, supra.)

Furthermore, the contention that se-
vere disabling psychotic disorders, includ-
ing the schizophrenic disorders, have an
initial phase, wherein the immediate admin-
istration of anti-psychotic drugs will pre-
vent substantial mental deterioration or

chronicity, is insupportable. (See DSM-III,

41.

supra at pp. 181,184, and 185.) The primary
characteristic of the schizophrenic disor-
ders is that the course of illness is chro-
‘nic and cyclic, In almost every case, |
periods of substantial deterioration fol-
lowed by remissions occur no matter what form
of treatment is prescribed: "A complete re-
turn to premorbid functioning is unusual --
so rare, in fact, that some clinicians would
question the diagnosis." Id, at 185. It was
precisely this observation that led the court
in Rennie v. Klein, 476 F.Supp. 1294, aff'd

in part, rev'd in part, Nos. 79-2576, 79-2577
(3rd Cir. July 9, 1981), cert.denied, U.S.
__, 110 S.Ct. 3059, 69 L.Ed.2d 425 (1981)

to conlude: "Many patients who would nor-
mally be treated with anti-psychotics can

improve without them... " Rennie v.

Klein, 476 F.Supp. at 1298. See also Davis,

supra at 936,937 and In re K.K.B., supra at
748.

However, the APA has set forth what

care individuals require during the deter-

42.

iorative phases of psychiatric disorders:

Supervision may be required
to ensure that nutritional
and hygienic needs are met
and to protect the individual
from the consequences of poor

judgment. DSM-III at 185. 9/
3. Expansion of the definition of
emergency to include the concept of psychia-

tric emergency denies involuntarily commit-

ted patients equal protection of the laws.
The definition violates involuntarily

committed patients’ right to equal protec-
tion because it draws a purposeless distinc-
tion between physically deteriorating medi-
cal patients and psychologically deterior-
ating psychiatric patients .22/ The State of
Massachusetts attempts to avoid the stric-

tures of equal protection by interposing the

9/ The importance of ensuring that the individual's
ic physical safety and dignity needs are attended
to is repeated throughout the manual wherever severe,
chronically disabling psychotic disorders are des-
cribed. See, e.g., DSM-III, §§ 295.1x; 295.2x.

10/ “Equal protection does not require that all per-
sons be dealt with identically, but it does require
that a distinction made have some relevance to the
purpose for which the classification is made."
Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

43.

concept of psychiatric emergency. However,
the attempt fails because the only rational
distinction that can be drawn between a
psychiatric patient and a medical patient
is incompetence to act. As a result, state
action which utilizes the presence or ab-
sence of mental disorder, rather than inca-
pability to act, to separate those who may
be treated from those who may not, fails to
provide a rational basis for such disparate

treatment. Winters, supra and Lessard,

supra, This contention is based on the no-
tion that individuals may not be deprived
of their freedom solely because they are

mentally ill. O'Connor, supra.

The concept of psychiatric emergency
does nothing to salvage the irrational dis-
tinction because it fails to distinguish
between a mentally deteriorating patient
who is capable of making a treatment deci-
sion and a mentally deteriorating patient
who is not. As a result, acceptance of

the concept of psychiatric emergency would,

44,

in practice, amount to a presumption that
an individual is incapable to act solely
because the state reasonably believes

that the administration of dangerous psy-
chotropic drugs is medically indicated to
prevent further mental deterioration.

Such action clearly denies involuntarily
committed patients equal protection because
it fails to "leave room for the individual
who would rather remain free of therapeutic
intervention even though that freedom is
obtained at the price of diminished func-

tional capacity." Coylar, supra at 434;

cf. O'Connor, supra.

To accept the notion that involun-
tarily committed patients may be forcibly
medicated to prevent further mental deter-
ioration, compels the conclusion that the

state could, acting as parens patriae,

force a cancer victim to submit to danger-
ous chemotherapy only because the state
believed such forced administration of

drugs might prevent further metastisis.

45.

Finally, in order to understand why
the concept of psychiatric emergency fails
to make a rational distinction between psy-
chologically deteriorating psychiatric pa-
tients and physically deteriorating medical
patients, one need only explore the rela-
tionship between medical treatment and the
concept of emergency. Because psychiatry
is a discipline of medicine, its authori-
ty to render treatment is likewise circum-
scribed:

Medical treatment is a service
erformed on an individual who
as requested or permitted it

or whose condition requires it.

Those who provide or perform

the service should do so only
when it is authorized by the
patient or by law. Warren,

David G., Problems in Hospital
Law (3rd ed. 1978).

Therefore, the authority of the psy-
chiatrist to proceed in emergencies that
implicate only the patients’ interests, in-
cluding the administration of dangerous
psychotropic drugs to prevent further men-
tal deterioration, assumes "that the

patient has not expressly refused the

46.

treatment." Id. at 155. Consequently,
courts have consistently held that an
adult patient who is concsious and men-
tally capable has the right to refuse any
medical procedure. (See Argument I.)
Moreover, courts have repeatedly
emphasized that the legally capable pa-
tient's refusal may not be disregarded only
because such refusal is not in the pa-
tient's best medical interests .+2/ This
notion is so axiomatic that the courts are
restrained from ordering a blood transfu-
sion solely to protect the patient's health,
even though the patient's refusal approxi-
mates the taking of his own life. (See,
e.g., Erickson v. Dilgard, 44 Misc.2d 27,
252 N.Y.S.2d 705 (1962).

11/ The legally capable individual's refusal to
accept treatment must be honored whether such re-
fusal is grounded upon the doubt that the contem-
plated treatment will not be successful, a concern
about the probable or possible results of such treat-
ment, a lack of confidence in the physician, a
religious belief, or a mere whim. See, e.g.,
Winters v. Miller, supra and In re Brooks Estate,

37 Til.2d 361, 205 NE2d 435 (1965).

47.

Clearly, then, the two factors needed
to establish an emergency that negates the
need for consent are not present in the con-
cept of psychiatric emergency:

[Flirst, the inability of the
atient or someone on his be-
alf to give consent, and,

second, a threat to the life

or health of the patient which
is deemed to be an immediate

pag Problems in Hospital
aw, supra at 155. (Emphasis
added) 12/

4. Expansion of the definition of

emergency to include the concept of psy-

chiatric emergency is an unconstitutional

12/ The concept of psychiatric emergency not only
fails to permit a legal determination of incapabil-
ity to act, it also fails to present the requisite
degree of immediacy of harm implicit in the concept
of emergency. The courts early on defined the de-
gree of harm required to create a medical emergency.
No medical emergency exists unless there is a threat
of irreversible harm. See, e.g., Zoski v. Gaines,
260 N.W. 99 (Mich. 1935). There is no evidence in
the literature to demonstrate that delay in the ad-
ministration of psychotropic drugs presents even a
substantial possibility of harm. To the contrary,
the weight of evidence demonstrates that immediate
forced administration of dangerous psychotropic
drugs not only fails as a means of curative interven-
tion, but that such action fails to meet the care
and treatment needs of the class of mentally dis-
ordered individuals that the State of Massachusetts
seeks to protect. (See Argument IIB, supra.)

48.

delegation of legislative power.

Expansion of the definition of emer-
gency to include the concept of psychiatric
emergency violates the Constitution's ban
on delegation because it fails to insure
that the fundamental policy decisions in
our society will be made not by an appointed
official but by the body immediately res-
ponsible to the people. Nor does it prevent
judicial review from becoming merely an
exercise at large, because it fails to pro-
vide the courts with some measure against
which to judge the official action that has
been challenged. See Arizona v. California,

373 U.S. 546 at 626 (1963),(Harlan, J.,
13/

dissenting in part).
That the legislature is constitution-

ally empowered to pass laws designed to

13/ This statement is an exegesis on the non-dele-
gation doctrine's relationship to the separation of
powers. However, the same functions are performed
by the Due Process Clause. The ban on delegation
sprang from the Fifth Amendment's Due Process Clause.
As such, its application to the state's is really a
function of fundamental fairness, acting as a bar
against unbridled discretion.

49,

safeguard the health, safety and morals of

the people cannot be questioned. 24/ But the

14/ Massachusetts has an interest in ensuring that
Individuals who are committed to its psychiatric in-
stitutions are given the opportunity to receive the
most expert care possible. As a result, the State
of Massachusetts, as virtually every other state in
the Union, has promulgated statutes that either im-
plicitly or explicitly delegate decision-making power
to private psychiatry. See, e.g., ch. 123, §53,
M.G.L.A. (1980)[Qualifications of physicians certi-
fying mental illness; copies of certificate]; ch. 19,
$10, M.G.L.A. (1980)[Programs for training of resi-
dents in psychiatry, etc.].

As a result of this delegation of decision-
making power, it is the APA who determines what
diagnostic criteria is legally required before an
individual can be legally deemed mentally disorder-
ed. Noteworthy is a7 fact that the State of
California explicitly delegates this power to the
APA in Title 9 of its Administrative Code which in
pertinent part reads: Mental Disorder.

For the purposes of Division 5

of the Welfare & Institutions
Code, “mental disorder" means.

any of the mental disorders as
set forth in the Diagnostic and
Statistical Manual of Mental
Disorders (Current Edition of the
American Psychiatric Association).
(Cal. Adm. Code, §813.)

Therefore, unless the APA determines that an
individual's behavior is mentally disordered, the
individual cannot be legally committed. Moreover,
since individuals must = diagnosed according to
the latest standards defining mental disorder, an
individual who was mentally disordered under DSM-II
criteria (DSM-III's predecessor), may not be dis-
ordered under DSM-III criteria. The result is that
each edition of the APA's diagnostic and statisti-
cal manual has the force of positive law. Each
manual's criteria supercedes the former's. As a

50.

expansion of the definition of emergency to
include the concept of psychiatric emergen-
cy allows the legislature to delegate rule-
making powers that it cannot. Could the
legislature enact a statute stating that
private psychiatry is Constitutionally em-
powered, in the absence of any legal con-
fines whatsoever, to forcibly administer
dangerous psychotropic drugs if the DSM-III
indicates such action is medically reason-

able?

(Footnote 14 continued)

result, the APA's criteria defining the various men-
tal disorders is directly read into the mental health
statutes of every state. This result is not objec-
tionable for the sound reason pronounced by this
Court in Parham v. J.R., 442 U.S. 584, 607-609 (1979):

The mode and procedure of medical
diagnostic procedure is not the
business of judges.

However, the open-ended delegation that will
result if this Court accepts the concept of psychia-
tric emergency is Constitutionally objectionable.
The delegation of decision-making power proposed by
the State of Massachusetts is Constitutionally bar-
red because its unavoidable consequence is that a
grant of legislative power will occur each time the
APA publishes new diagnostic criteria. Only the ne-
bulous parameters of the APA's concept of mental de-
terioration will determine when the state's monopoly
on violence, to forcibly medicate an unconsenting
patient, will be set in motion.

51.

The concept of psychiatric emergency,
confined only to what constitutes substan-
tial mental deterioration within the elu-
sive boundaries of DSM-III, contains the
Constitutionally fatal flaw explained by
Mr. Justice Cardozo in Schecter Corp. v.

United States, 295 U.S. 495 at 551 (1935):

The ge 6 power of legis-
lation which has found expression
in this code is not canalized
within banks that keep it from
overflowing. It is unconfined
and vagrant . .. (Panama

Refining Co. v. Ryan, 293 U.S.
388, a (1934)).

Here . . . is an attempted del-
pe pa not confined to any
gle act nor to any class or

group of acts identified or
escribed by reference to a
standard. Here in effect is

a roving commission to inquire
into evils and upon discovery
correct them.

The concept of psychiatric emergency
does not offend the non-delegation doctrine
because it allows private psychiatry to de-
termine the standards which ultimately es-
tablish the legal sufficiency of the class-
ifications of the various mental disorders.

Nor does the concept of psychiatric emer-

52.

gency offend the non-delegation doctrine
because it allows private psychiatry to de-
termine when a psychiatric emergency exists
as a matter of clinical judgment. (See

f.n. 14, infra.) Rather, the delegation is
Constitutionally repugnant because it grants
private psychiatry the power to determine
the subject matter that defines the Consti-
tutional limitations of the exercise of

its own authority. This open-ended delega-
tion to private psychiatry fails, not be-
cause it does not prescribe particular pro-
cedural mechanisms, but because "[i])nstead
of prescribing rules of conduct, it author-
izes the making of codes to prescribe them."
Schecter Corp. v. United States, supra at
541.

Because the concept of psychiatric
emergency allows private psychiatry to de-
termine the Constitutional parameters of
its own conduct, should this Court accept
the notion of psychiatric emergency, it

will be equivalent to a grant of state

53.

power to act. Psychiatrists would become
the only private group in our society to
have been given the power by a single ad-
judication to dispose of an individual's
rights. The wielding of such power consti-
tutes an unprecedented menace to liberty
and democracy. (See, e.g., Wirtz, "Govern-
ment by Private Groups," 13 La.L.Rev. 440
(1953); Hanslowe, "Regulation by Visible
Public and Invisible Private Government,"
46 Tex.L.Rev. 88 (1961). This same threat

to our fundamental Constitutional framework
led the court in Johnson v. Milk Marketing
Board, 295 Mich. 644, 295 N.W. 346, 353

(1940) to warn: "No one should act as a
judge in his own cause." cf; Carter v.
Carter Coal, 298 U.S. 238 (1936).

Most importantly, the concept of psy-

chiatric emergency, by virtue of its content
and breadth, delegates a power to private
psychiatry to make what is traditionally a
judcial determination (i.e., legal incap-
ability to act, thereby enabling the state

54.

to act as parens patriae). Therefore, the
proposed delegation threatens historic no-
tions of fair trial and fair hearing. (See
Liebmann, "Delegation to Private Parties,"
50 Ind.L.J., pp. 657-59 (1975).

The District Court below in Rogers I.
recognized the danger of the decision-making
power delegated to psychiatrists should the
notion of psychiatric emergency be adopted
by this Court:

[D)Jefendants' proffered defin-
inition of an emergency justi-
fying forced medication --

the psychiatric wer wage 4 con-
cept -- is too broad, subjective
and unwieldy. The fact that a
set of circumstances may fall
within the broad parameters of
a psychiatric emergency does
not necessarily justify any
and all pereceet se steps taken
thereafter by a doctor, even
ep therapeutic and well
within the standards of reason-
able medical practice.

This court holds therefore that
a committed mental patient may
be forcibly medicated in an
emergency situation in which a
failure to do so would result
in a substantial likelihood of
yn ge harm to that pre:

gers I, supra at 136

55.

Moreover, because the concept of
psychiatric emergency is so broad and so
unwieldy, the decision to forcibly medicate,
once made, is not readily subject to judi-
cial review. There is no legal standard,
either implicit or explicit, contained
within the definition, against which to

measure the state's action. (Arizona v.

Calif., supra.) The subject matter permit-
ting forcible medication is purely medical,
circumscribed only by the indeterminate
boundaries of what constitutes a psychia-
tric emergency. The unavoidable result is
a violation of fundamental due process.
(See Argument I.)

Finally, should this Court find that
psychiatrists may force dangerous psychotro-
pic drugs on unconsenting involuntarily
committed patients, absent an adjudication
of legal incapability to act, the State
will be allowed, through private psychiatry,
to do what it cannot Constitutionally do
directly -- abrogate the Constitutional

56.

rights of individuals in the absence of a
justifiable state interest. (See Argument
1, )42/ That private psychiatry reasonably
believes that a psychiatric emergency calls
for the forced administration of dangerous
psychotropic drugs makes the intrusion no
less invasive to involuntarily committed
patients’ fundamental due process rights:

Experience should tell us to
be most on our guard to pro-
tect liberty when the govern-
ment's purposes are beneficent
Men born to freedom are natural-
ly alert to iy Sg invasion of
their liberty by evil-minded
rulers. The greatest dangers
lurk in insidious encroachment
by men of zeal, well-meaning,
but without understanding.
Olmstead v. United States, 277

U.S. at 479 (1928) (Brandeis, J.,
dissenting).

_15/ The decision to forcibly medicate would auto-
matically be justified solely because private
psychiatry, in its clinical judgment, reasonably
believed that the individual would further deter-
iorate without immediate administration of psycho-
tropic drugs. The result is unconsitutional,
because the delegation of this decision-making
power to private psychiatry automatically subro-
gates the individual's interest in being free

from unwarranted governmental intrusions, to the
interest of the state in providing care and
treatment.

37.

III. DUE PROCESS REQUIRES COURTS
TO EXERCISE "SUBSTITUTED
JUDGMENT" WHEN THE STATE ACTS
AS PARENS PATRIAE ON BEHALF
OF PATIENTS WHO HAVE BEEN JU-
DICIALLY DETERMINED INCOMPETENT
While it is true that "the sine qua
non for the state's use of its parens
patriae authority is a judicial determina-
tion of the patient's incompetence, Rogers
II, supra at 657, it is also true that the

exercise of the parens patriae authority is

not shielded from the requirements of due

process. Specht v. Patterson, 386 U.S.

605 (1967) and O'Connor v. Donaldson, supra.

In the context of forcible medication,
the state's responsibility to patients with
respect to due process does not end when the
patient has been declared incompetent. The
First Circuit below ruled that subsequent
to the determination of incompetence,

[S]tate actions based on
eet be takernwith the eim
sicaaae'the individual

himself would were he com-
etent to do so. cf.

erintendent of Belcher-
town v. Saikewicz [citations

omitted] (“substituted judg-

58.

ment" standard). Furthermore,
in order to ensure compliance
with this requirement, some
minimum procedural requirements
would seem to be necessary.

Id. at 661.

The Saikewicz case held that both

competent and incompetent mental patients
have a fundamental right to refuse treat-

ment. See Colyar, supra at 430. There-

fore, in order to preserve the right of

the incompetent patients, courts are re-
quired to exercise a "substituted judgment"
which is consistent "with the values and
desires of the affected individual."

Saikewicz, supra at 431.

Based on the reasoning of Saikewicz,

the couct in Guardianship of Roe, supra,

ruled thet trial courts must preserve the
right of incompetent mental patients to re-
fuse anti-psychotic drugs by exercising a
“substituted judgment" on behalf of the
patient. The court held that a court-ap-
pointed guardian could not constitutionally
consent to the medication until the trial

court had exercised a "substituted judgment"

59.

based on a consideration of the patient's
expressed preferences regarding treatment,
his religious beliefs, impact upon the
patient's family, the probability of ad-
verse side effects, the consequences if
treatment is refused, and the prognosis

with treatment. Guardianship of Roe,

supra at 56-61.

These cases establish that incompe-
tent patients are Constitutionally entitled
to a judicial determination of "substituted
judgment" before anyone can consent to anti-
psychotic medications on their behalf. See

also In re K.K.B., supra; In re Boyd, supra;

and Robertson, "Organ Donations by Incompe-
tents and the Substituted Judgment Doc-
trine," 76 Colum. L. Rev. 48, 57-68 (1976).

CONCLUSION

The fundamental rights to privacy and
bodily integrity protect all citizens from
state-inflicted bodily harm. This concept
lies at the very heart of the Constitution-

al framework of this country. This Court

60.

thoughout its history has acted to protect
all citizens from such harm and to safe-
guard the fundamental rights of those whose
ideas are considered unorthodox.

The forcible use of dangerous anti-
psychotic drugs on citizens who are already
confined by civil commitment is a shocking
violation of these fundamental rights which
this Court must once again protect.

This Court must uphold the right of
all citizens to resist the unjustified use
of these dangerous drugs and to affirm the
human dignity of those who are forced to
take them.

Respectfully submitted,
Sept 28, (98) om. Gucorn TL
LOUIS M. AUCOIN, III™

Patients’ Rights
Advocacy Services, Inc.

2525 24th Street

San Francisco, CA 94110

415-282-1777

*attorney for Amicus
Curaie

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1958%3A18. Public record. Not legal advice.